Can the law change how we behave?

Mar 21, 2019

Written By Emma Finamore

Does legislation change the way we think and behave? Do we require ‘nudges’ from state institutions to change how we conduct ourselves, or do humans have too much autonomy and free will to be controlled like that? We look at real-life examples of legislation that could be seen as having an impact on behaviour.

The art of the ‘nudge’

The idea of a ‘nudge’—in terms of modifying human behaviour— does just what it says on the tin: something subtle and gentle, rather than harsh or strictly enforced. The first formulation of the term and associated principles was developed in 1995 by cyberneticist James Wilk, and described by Brunel University academic D. J. Stewart as “the art of the nudge”. A nudge is a microtargetted design or intention geared towards a specific group of people.

In 2008, Richard Thaler and Cass Sunstein’s book Nudge: Improving Decisions About Health, Wealth and Happiness brought nudge theory to prominence. They defined their concept as: “A nudge, as we will use the term, is any aspect of the choice architecture [the design of different ways in which choices can be presented to consumers, and the impact of that presentation on consumer decision-making] that alters people’s behaviour in a predictable way without forbidding any options or significantly changing their economic incentives.

“To count as a mere nudge, the intervention must be easy and cheap to avoid. Nudges are not mandates. Putting fruit at eye level counts as a nudge. Banning junk food does not.”

An individual’s actions aren’t always aligned with their intentions (called a ‘value-action gap’) and people will often do something that isn’t in their own self-interest, even when they are aware of it. For example, when they’re hungry, people on diets often underestimate their ability to lose weight, and their intentions to eat healthily can be temporarily weakened until they are full. The example used by Thaler and Sunstein—of placing fruit or other healthier foods at eye-level on shop shelves or near checkouts—can steer people, who are trying to eat well but might be hungry as they are shopping for their lunch, towards better decisions.

A nudge makes it more likely that an individual will take a particular choice, or behave in a particular way, by altering the environment so that their automatic thought processes are triggered in a way that favours the desired outcome.

One of the most frequently cited examples of a nudge is the drawing of the image of a housefly onto the men’s room urinals at Amsterdam’s Schiphol Airport, which is intended to improve the aim of users. It turns out—for whatever reason—most men will focus on the drawing while using urinals, resulting in less mess, cleaner public facilities and lower cleaning costs. The fly is the nudge that results in more desirable behaviour.

Nudges are small changes in environment that are easy and inexpensive to implement. Several different techniques exist for nudging, including defaults, social-proof heuristics and increasing the salience of the desired option.

The value of values

Another way of looking at why we behave the way we do is by taking into account our values.

In The Oxford Handbook of Behavioural Economics and the Law, Eyal Zamir and Doron Teichman (eds) 2014, Chapter 10, ‘Law, Moral Attitudes and Behavioural Change’ by Kenworthey Bilz and Janice Nadler, the writers put forward the case for laws and punishments actually helping to shape our own internal ethics, how we view certain behaviours.

“Undoubtedly, laws are sometimes effective because they are backed by the threat of punitive enforcement. This threat prompts individuals to make judgments about risk and reward before deciding whether to engage in a prohibited activity. Accordingly, standard economic analysis relies on the assumption that if the expected cost of behaviour—comprised of the severity and probability of punishment—exceeds its expected benefit, then the actor will refrain from that behaviour (Becker 1968),” Bilz and Nadler write.

“Indeed, standard economic analysis assumes that questions about the effect of law on human behaviour both begin and end with the assumption that behaviour responds to rewards and punishments. At the same time and in parallel, law forthrightly attempts to shape citizens’ moral beliefs. When the law forbids murder, this is because murder is evil, and the language of the law sometimes makes explicit the moral implications of the prohibited act. Thus, the criminal law traditionally grades an unintentional killing committed with a “depraved heart” or an “abandoned and malignant heart” as murder, but other unintentional killings as merely manslaughter. Conversely, Good Samaritan laws— although uncommon in the US—are designed to shape beliefs about the moral duty to rescue.”

The academics explain how research has found that laws can express values—legislation can be loaded with ideas of ethics, right and wrong—that in turn can influence behaviour. Also, if we expect other people to follow (or not follow) a law, this can have an impact on our behaviour.

Take paying taxes, for example. “Empirical evidence on tax compliance suggests that deterrence cannot account for the wide variance between countries and sometimes regions or cities. Variables other than expected punishment are more helpful in accounting for observed differences in tax morale,” say Bilz and Nadler. “Several studies found that the perceived likelihood of others’ tax paying significantly affects individual compliance. These interdependencies suggest multiple equilibria, so coordination effects may account for the large differences in behaviour from place to place.

They argue that this applies to many other potential offences as well; people are influenced by the value that they and their particular society ascribe to specific laws. “Similarly, police seldom enforce laws against smoking in public buildings, yet most people obey these laws in some countries and not in others,” say Bilz and Nadler. Similar arguments apparently apply to large differences in compliance with laws governing speeding on the highway, jay-walking, shoplifting or riding public transportation without paying. In general, coordination effects may account for large differences in compliance from place to place where expected sanctions are relatively constant.”

Battle of the bulge

Various laws and rules have changed human behaviour (or have attempted to) when it comes to their food choices, especially in the west as obesity rates grow and grow. In the UK, for example, it was reported at the end of 2018 that a trial that saw supermarkets remove sweets and crisps from checkouts resulted in almost a fifth less of the unhealthy products being sold.

The researchers from British universities found that 17% fewer small packages of sugary confectionery, chocolate and crisps were bought and taken home from supermarkets after they introduced policies to limit unhealthy foods at tills.

A “dramatic reduction” in the number of purchases of unhealthy food eaten “on the go” was also revealed in the study, funded by the Department of Health and Social Care Policy Research Programme: shoppers made 76% fewer purchases of sugary confectionery, chocolate and crisps from supermarkets with the policies.

Six of the nine major supermarkets introduced checkout-food policies between 2013 and 2017 for the research. Now the results will inform law: sweets and fatty snacks sold at checkouts and as part of supermarket deals will be banned under new government proposals to halve childhood obesity in England by 2030.

The new government strategy says: “Where food is placed in shops and how it is promoted can influence the way we shop, and it is more common for HFSS [high in fat, sugar and salt] products to be placed in the most prominent places in store as well as sold on promotion, eg. with ‘buy one get one free’ offers.”

This is an example of nudge theory: making it easier (and therefore more likely) for individuals to make the ‘desired’ choice of selecting healthier food, or at least not selecting extremely unhealthy food.

No smoking please

In The Oxford Handbook of Behavioural Economics and the Law, Eyal Zamir and Doron Teichman (eds) 2014, Chapter 10, ‘Law, Moral Attitudes, and Behavioural Change’ by Kenworthey Bilz and Janice Nadler points to anti-smoking legislation in the US as another example of laws—working hand-in-hand with public information—having an impact on how we think and behave.

In 1964, the US surgeon general (the operational head of the national Public Health Service Commissioned Corps and the leading spokesperson on public health) published a report establishing the scientific basis supporting the claim that smoking carries grave health risks for smokers. The following year, Congress mandated health warnings on cigarette packages and in 1969 imposed limits on tobacco advertising (the Federal Cigarette Labelling and Advertising Act, and Federal Public Health Cigarette Smoking Act of 1969).

“It is unclear whether this type of government regulation of information—health warnings and advertising limits—caused any discernible change in smoking behaviour,” the academics write. “But a turning point came when the prospect emerged that non-smokers were being harmed by second-hand smoke. At that point, smoking became more than just a question of an individual smoker’s liberty interest in engaging in an activity that causes harm to the self—now harm to others was an issue.”

They explain how—because non-smokers were now being subjected to harm to their health that they hadn’t necessarily consented to—the issue of smoking near those who chose not to took on a more significant moral dimension, and legal restrictions on smokers’ behaviour (not just restrictions on advertising) became a real possibility. By the early 1970s, laws imposing smoking bans in certain public places began to increase slowly and in 1986, the US surgeon general released a report that found that second-hand smoke causes cancer. This was followed by reports that found that second-hand smoke causes lung and heart disease, and that in children second-hand smoke is associated with asthma, ear infections and respiratory infections (The Respiratory Health Effects of Passive Smoking 1992).

“Conventional economics would predict that the largest effects on smoking behaviour would stem from effects on the smoker herself,” write Bilz and Nadler. “Instead, as elaborated below, the largest effects emerged from realisations about its effects on others.” The fact that very few people break smoking laws demonstrates the power of the values and ethics ascribed to these rules: to break them makes you a ‘bad’ person.

Plastic people

Since October 2015, large retailers in England have been required by law to charge 5p for all single-use plastic carrier bags. They are required by law to report certain information to Defra, and they provide other information on donations on a voluntary basis. This has had a major impact on plastic bag use, but also can be seen as part of a shift in attitudes towards plastic in general.

Government data shows that the seven main UK retailers issued around 83% fewer bags (over six billion bags fewer) in 2016 to 2017 compared to the calendar year 2014. This would be equivalent to each person in the population using around 25 bags during 2016 to 2017, compared to around 140 bags a year before the charge.

There’s been a big shift in attitudes too: in a 2018 poll of more than 5,000 UK consumers, almost a quarter (24.6%) expressed ‘extreme concern’ about plastic packaging in grocery. Kantar Worldpanel also found that 80% of respondents claimed to use bags for life, while other research showed changes in attitudes towards single-use plastic have led to 46% of UK consumers always or mostly declining plastic straws with their drinks.

More than half (53%) also say they are actively trying to buy groceries that aren’t sold in plastic packaging. The laws around plastic-bag use could arguably have played a big part in these changes in behaviour and attitude.

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